FILED December 9, 2014

I n the Office of the Clerk of Court W A State Court of Appeals, Division III

COURT OF APPEALS, STATE OF WASHINGTON, DIVISION III

In re: ) No. 31322·1·111 )

JENNIFER HALL, ) ORDER GRANTING ) MOTION TO PUBLISH

Appellant, ) and )

) WILLIAM BROUILLET, )

) Respondent. )

The court has considered a third party's motion to publish the court's opinion of

August 26, 2014, and the record and file herein, and is of the opinion the motion to

publish should be granted. Therefore,

IT IS ORDERED the motion to publish is granted. The opinion filed by the court

on August 26,2014, shall be modified on page 1 to designate it is a published opinion

and on page 10 by deletion of the following language:

The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

No. 31322-1-11' In fe Hall and Brouillet

DATED: 1219/14

PANEL: Jj. Brown, Korsmo, Siddoway

FOR THE COURT:

=r~/7tRELH:SiDDOWi.:Y

CHIEF JUDGE

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FILED AUGUST 26, 2014

In the Office of the Clerk of Court W A State Court of Appeals, Division III

IN TIlE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

In re: ) ) No. 31322-1-III

JENNIFER HALL, ) )

Appellant, ) )

and ) )

WILLIAM BROUILLET, ) UNPUBLISHED OPINION )

Respondent. )

SIDDOWAY, C.J. - In State ex rei. Mauerman v. Superior Court, 44 Wn.2d 828,

271 P.2d 435 (1954), the Washington Supreme Court held that a petition to modify the

custody provisions ofa divorce decree was a new proceeding within the meaning of

Washington statutes entitling parties to litigation to one change ofjudge, with the result

that the mother had a right to file an affidavit ofprejudice and thereby disqualify the

judge who had presided over her divorce. The Supreme Court refused to indulge the

argument that "because the judge who settles the issue ofcustody of children at the trial

ofa divorce case is acquainted with the problem, he should not be disqualified from later

proceedings." ld. at 830. It held, "Ifthe proceeding is one within the meaning ofthe

cited statutes, a motion for a change ofjudges presents no question ofdiscretion or

policy. It must be granted as a matter ofright." ld. The same result obtains under the

.No.31322-l-III In re Hall and Brouillet

Judge Plese evidently also retained some type ofjurisdiction over matters addressed by

her order. At one point Mr. Brouillet's trial lawyer argued,

[T]he parenting plan in January was entered by agreement. The agreement contained paragraphs 2.1 and 2.2, which specifically states that the parties have agreed this Court will retain jurisdiction over the parenting plan at least to the extent of any allegations as to parental conduct.

Clerk's Papers (CP) at 130. Neither party has made Judge Plese's January 11,2012

original order a part of the record. 1

On August 29,2012, Ms. Hall commenced the action below by filing a summons

and petition for modification ofthe parenting plan, using the mandatory petition fonn for

such an action. The modified parenting plan that she proposed provided that her daughter

would live with her in Liberty Lake upon enrollment in school, and stay with Mr.

Brouillet every other weekend. She sought modification under RCW 26.09.260(1),

which provides that ordinarily the court shall not modify a prior parenting plan,

unless it finds, upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that a substantial change has occurred in the circumstances of the ·child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests ofthe child.

1 The record on appeal includes an insufficiently explained "CR2A Settlement Agreement" from the parentage proceeding that was filed with the court on April 23, 2012 that includes different language about retaining jurisdiction. CP at 249. Because it is unexplained, and because Mr. Brouillet's lawyer's statements to the court were made later; we cite to them. The language as to what jurisdiction was being retained would not make a difference, given our analysis.

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No. 31322-I-II1 In re Hall and Brouillet

present modification statute, RCW 26.09.260, and under RCW 4.12.050, which allows a

party to litigation to disqualify one judge in a proceeding as a matter of right.

Jennifer Hall, having commenced this action to modify the parenting plan for her

daughter, filed a timely motion and affidavit ofprejudice seeking to disqualify the

superior court judge who presided over the parentage action in which the existing

parenting plan was entered. Mauerman is controlling. Ms. Hall's motion for change of

judge should have been granted as a matter of right. I We reverse the superior court's denial of the motion for change ofjudge. We

remand with directions to vacate any action taken by the disqualified judge and to

transfer the petition to another department ofthe court.

FACTS AND PROCEDURAL BACKGROUND

Jennifer Hall and William Brouillet are the natural parents of a daughter whose I parentage was resolved in an action presided over by Judge Annette Plese. On January I 11,2012, Judge Plese signed a parenting plan in that proceeding that divided the I daughter's time almost equally between Ms. Hall and Mr. Brouillet. Although a copy of I this original plan is not in the record on appeal, it is evident from the record that Judge I Plese's order also resolved a dispute between the parties over where the daughter should I

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I [attend school; Mr. Brouillet wished for her to attend school in the Mead area, where he

lived, but Ms. Hall had since moved to Liberty Lake and wanted her daughter to attend

school there. The court ordered that the daughter would attend school in Mead. And I i2 i f t

No.31322-l-Ill In re Hall and Brouillet

The "substantial change in circumstance" that Ms. Hall alleged in the petition was

that she had discovered a declaration filed by Mr. Brouillet in King County superior court

proceedings involving his fiancee that suggested (along with other evidence) that he was

now living in the Seattle area. Ms. Hall alleged that this was contrary to Mr. Brouillet's

earlier representation to the court that he wished for his daughter to go to school in the

Mead area because that is where he was living.

Upon filing her petition, Ms. Hall obtained an ex parte restraining order providing

that the parties' daughter would reside with Ms. Hall until the time of a September 12

hearing and would be allowed to be enrolled in and attend school in the district in which

Ms. Hall resided. Mr. Brouillet promptly moved to quash the restraining order and

moved for an order shortening time so that his motion to quash could be heard on

September 4. He set his motion to quash to be heard by Judge Plese.

On the day the motion to quash was to be heard, and before Judge Plese had taken

any action, Ms. Hall filed a motion for change ofjudge that included her lawyer's

certificate that he believed that "a fair and impartial trial in this case cannot be had

before: [Judge] Annette Plese." CP at 57. As a result, the first matter addressed by Judge

Plese upon taking the bench for the September 4 hearing was the affidavit ofprejudice.

After hearing arguments from both parties, Judge Plese pointed out that she had presided

over the lengthy prior proceeding, which now consumed 14 volumes of court files and

that in the course of that action she had retained jurisdiction over future matters. She

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No.31322·1-III In re Hall and Brouillet

denied the motion for change ofjudge, which she characterized as a veiled attempt to

"bypass this Court's rulings and file, a new modification and get by what the Court's

already heard and what the Court made ruling on." CP at 118. A motion by Ms. Hall for

reconsideration was denied.

Judge Plese's written order denying the motion for change ofjudge was entered

thereafter and included findings that (I) the petition was not a new proceeding, and (2)<

that the court had retained jurisdiction over the parenting plan and Ms. Hall had not

attempted to appeal the retention ofjurisdiction. Ms. Hall appeals.

ANALYSIS

Motions to change judges are'governed by RCW 4.12.040 and RCW 4.12.050.2

RCW 4.12.040(1) provides that "[n]o judge ... shall sit to hear or try any action or

proceeding wh~n it shall be established ... that said judge is prejudiced" against any

party or their interest. Under these statutes, "[a] party in a superior court proceeding is

entitled to one change ofjudge upon timely filing an affidavit of prejudice." In re

Marriage ofTye, 121 Wn. App. 817, 820, 90 P.3d 1145 (2004). An affidavit ofprejudice

2 A second basis on which to disqualify ajudge who a party believes is biased is the appearance of fairness doctrine, which prevents "a biased or potentially interested judge from ruling on a case," but requires a showing of actual prejudice. In re Marriage ofMeredith , 148 Wn. App. 887, 903, 201 P.3d 1056 (2009). Ms. Hall makes an alternative argument for disqualification of Judge Plese based on the appearance of fairness doctrine, but given our decision on Ms. Hall's right under RCW 4.12.050, we do not address it.

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No. 31322-1-III In re Hall and Brouillet

is timely if it is called to the court's attention "before the judge presiding has made any

order or ruling involving discretion." RCW 4.12.050(1); 14 KARL B. TEGLAND,

WASHINGTON PRACTICE: CIVIL PROCEDURE § 10:9 (2d ed. 2009).

It is undisputed that Ms. Hall filed her motion and affidavitofprejudice before

Judge Plese took any action on the petition for modification. The only issues are whether

the petition was a "proceeding" distinct from the parentage action over which Judge Plese

had earlier presided, and whether Judge Plese's earlier order retaining jurisdiction makes

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a difference. The determination of whether RCW 4.12.050 imposed a duty on Judge

Plese to step aside under the circumstances is a question of law that we review de novo. I In re Estate ofBlack, 116 Wn. App. 492,496,66 P.3d 678 (2003).

The Washington Supreme Court's 1954 decision in Mauerman and earlier cases

on which it relies are controlling. In Mauerman, a mother filed a petition for

modification of the custody provisions in her divorce decree, asserting changed

circumstances. The modification proceeding was assigned to the judge who had presided

over the divorce. The mother filed a timely affidavit of prejudice. When the trial court

denied her motion, she obtained an alternate writ ofmandate from the Supreme Court,

which ordered the judge to transfer the proceeding to another department of the court or

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show cause for not doing so. 44 Wn.2d at 830.

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No. 31322-1-III In re Hall and Brouillet

In responding to the order to show cause, the judge asserted that, because the

, divorce action was submitted to and heard by him, he could not be disqualified from

hearing the modification proceeding. Id. The Supreme Court disagreed. It held that

[a] proceeding to modify the child custody provisions of a divorce decree, upon allegations of changed conditions since the entry of that decree, is a new proceeding. It presents new issues arising out ofnew facts occurring since the entry of the decree. It is not ancillary to or in aid of the enforcement of the divorce decree. It is a "proceeding" within the meaning of the cited statutes, and the petitioner is entitled to a change ofjudges as a matter of right.

Id. The court cited to its earlier decision in State ex rei. Foster v. Superior Court, in

which it had held that in an action to modify the custody of a child, the petitioner was

entitled to a change ofjudge upon filing an affidavit ofprejudice because the requested

modification was not "a proceeding ancillary to the divorce action or in aid of the

enforcement of the final decree rendered therein," but a proceeding to "determine new

rights arising out ofnew facts occurring since the rendering of that decree." 95 Wash.

647,653, 164 P. 198 (1917). Accordingly, it held that it is "a 'proceeding' within the

meaning of Rem. Code, § 209-1,"3 and that the petitioner, having made his application

3 The prior version of the statute contained in the Remington Code was essentially identical to that of the current RCW 4.12.040 See REM. 1915 CODE § 209-1 ("No judge of a superior court of the state of Washington shall sit to hear or try any action or proceeding when it shall be established, as hereinafter provided, that such judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause.").

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No.31322-I-III In re Hall and Brouillet

for change ofjudge as required by the statute, was entitled to such change "as a matter of

right." Id.

We understand that Mr. Brouillet and Judge Plese view Mauerman as

distinguishable. Our recordreveals that both are emphatic that Ms. Hall did not, in fact,

present a substantial change in circumstances, since where Mr. Brouillet spent his time-

at his Seattle area home, or in the Mead area-had been addressed in the earlier action.

But their skepticism about the substantive merits of Ms. Hall's petition for

modification--even though well informed, and we would ofcourse regard the judge's

view as especially reliable-is irrelevant, given the statutory standard. Mauerman

requires only that a modification petition be based upon allegations of changed

conditions. Mauerman, 44 Wn.2d at 830. And it is well settled that, once prejudice is

established by the filing of an affidavit, no inquiry into the facts is permissible. Rather,

"[ s ]uch a motion and affidavit seasonably filed presents no question of fact or discretion."

State v. Dixon, 74 Wn.2d 700, 702,446 P.2d 329 (1968).

Because the filing of the affidavit is conclusive, the court must take the petition at

face value-regardless ofwhether it believes the allegations contained therein lack merit.

This mandate makes sense in light of the purpose of the statutory scheme governing

affidavits ofprejudice and change ofjudges: "Every lawsuit must have a loser. This will

be easier to bear if, before proceedings begin, the loser had the right to remove a judge

who he thought might not be fair to him." State v. Clemons, 56 Wn. App. 57,60, 782

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No. 31322-1-111 In re Hall and Brouillet

P .2d 219 (1989). And if a petitioner has frivolously asserted changed circumstances and

new facts, that will be discovered soon enough, by the next judge.

The trial court's prior retention ofjurisdiction does not change the analysis, given

that Ms. Hall framed her legal action as a petition for modification under RCW

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26.09.260. In arguing in the trial court that the court's retention ofjurisdiction made a

difference, Mr. Brouillet relied on In re Marriage o/True, 104 Wn. App. 291, 16 P.3d

646 (2000), but the case does not help him. In True, the trial court in a divorce action

retained ongoing jurisdiction of the case for a short period of time during which

provisions of its final order would be going into effect; the appellate court held that "a

trial court may retain jurisdiction over the matter for a limited period oftime in order to

review the efficacy of its decision and to maintainjudicia1 economy following its order."

Id. at 298. But the appellate court did not agree with the wife, who challenged the

retained jurisdiction, that it would deprive her of her statutory right to disqualify the

judge if she filed a petition for modification proceeding. If the "situation and facts so

merit," it concluded that she would be free to file a petition for modification and exercise

her right to disqualify the judge. Id In effect, the trial court in True made it possible for

the parties to come back to it for further review and relief short ofmodification. The trial

court was powerless in True, and Judge Plese was powerless here, to deprive Ms. Hall of

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. her right to file a petition for modification under RCW 26.09.260 and exercise her rights

under RCW 4.12.050.

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No. 31322-1-II1 In re Hall and Brouillet

We reverse the trial court's order denying Ms. Hall's motion for change ofjudge

and remand with directions to vacate any actions taken in the action by Judge Plese and

to transfer the petition to another department of the court.

A majority of the panel has determined that this opinion will not be printed in the

Washington Appellate Reports but it will be filed for public record pursuant to RCW­

2.06.040.

Sid~ () WE CONCUR:

h+--H'-I1---Korsmo, 57 J~$

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